Bank of New York Mellon v. Christine Stabenow

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF NEW YORK MELLON, FKA No. 19-35108
Bank of New York, as Trustee for the
Certificateholders of CWMBS, Inc, CHL D.C. No. 3:16-cv-01590-MO
Mortgage Pass-Through Trust 2007-15
Mortgage Pass-Through Certificates, Series
2007-15, MEMORANDUM*
Plaintiff-counter-
defendant-Appellee,
v.
CHRISTINE M. STABENOW; JOHN F.
STABENOW,
Defendants-counter-
claimants-Appellants,
BANK OF AMERICA, NA, AKA Bank of
America Loan Servicing, LP, AKA
Countrywide Financial Corporation, AKA
Countrywide Home Loans, Inc.,
Counter-defendant-
Appellee,
and
NEW PENN FINANCIAL, DBA Shellpoint
Mortgage Servicing,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Counter-defendant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted July 14, 2020**
Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
Defendants Christine M. Stabenow and John F. Stabenow appeal pro se from
the district court’s judgment of foreclosure following a bench trial. We have
jurisdiction under 28 U.S.C. § 1291. We review for clear error the district court’s
findings of fact following a bench trial. Allen v. Iranon, 283 F.3d 1070, 1076 (9th
Cir. 2002). We affirm.
The district court did not commit clear error in finding that plaintiff had
possession of the promissory note secured by a deed of trust on defendants’
property when plaintiff filed for foreclosure. See Allen, 283 F.3d at 1076(explaining that the clear error standard is significantly deferential, and that this
court would “accept the lower court’s findings of fact” unless this court is left with
a “definite and firm conviction that a mistake has been committed”); see also Or.
Rev. Stat. § 73.0301 (a person entitled to enforce an instrument includes the
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 19-35108
“holder of the instrument”); Or. Rev. Stat. § 71.2010(2)(u)(A) (a “[h]older” is a
“person in possession of a negotiable instrument . . . .”); Inv. Serv. Co. v. Martin
Bros. Container & Timber Prod. Corp., 465 P.2d 868, 869 (Or. 1970) (noting that
the plaintiff became the holder when it “received” the negotiable instrument).
We reject as unsupported by the record defendants’ contention that the
district court did not grant their motion to strike testimony regarding the bailee
letter.
The district court did not abuse its discretion in overruling defendants’
hearsay objection. See United States v. Whittemore, 776 F.3d 1074, 1082 (9th Cir.
2015) (“[P]ersonal knowledge includes opinions and inferences grounded in
observations and experience.” (citation omitted)); United States v. Kirk, 844 F.2d
660, 663 (9th Cir. 1988) (standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 19-35108